R v Henness

Court of Criminal Appeal (NSW)|2004-02-09|Before: Sully J, James J, Hulme J

CITATION : R v Henness [2004] NSWCCA 50 HEARING DATE(S) : 9 February 2004 JUDGMENT DATE : 9 February 2004

JUDGMENT OF : Sully J at 1, 34, 36; James J at 2; Hulme J at 35 DECISION : Leave to appeal granted - appeal allowed

CATCHWORDS : Criminal Law - sentence appeal - maliciously inflicting grievous bodily harm with intent to do grievous bodily harm LEGISLATION CITED : Crimes Act Crimes (Sentencing Procedure) Act PARTIES : R v Marc Henness FILE NUMBER(S) : CCA 60353/03 COUNSEL : W Baffsky - Applicant G Rowling - Crown SOLICITORS : A Mijovich - Applicant CK Smith - Crown

LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/0308 FILE NUMBER(S) : LOWER COURT Nield DCJ JUDICIAL OFFICER :

1 - IN THE COURT OF CRIMINAL APPEAL 60353/03

SULLY J JAMESJ HULME J

Monday 9 February 2004 REGINA v MARC HENNESS Judgment

1 SULLY J : We have come to a view about this matter. Mr Justice James will deliver the first judgment. 2 JAMES J : Marc Henness has applied for leave to appeal against a sentence imposed on him in the District Court on 12 December 2002 by his Honour Judge Nield after a jury had found the applicant guilty of one count of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm.

3 His Honour imposed a sentence of a term of imprisonment of eight years, commencing on 14 June 2002, with a non-parole period of six years. The 14 June 2002 was the date on which the jury had returned its verdict of guilty at the trial. The applicant had been released on bail two days after he was arrested and he had remained at liberty on bail until the jury returned its verdict. 4 Maliciously inflicting grievous bodily harm with intent to do grievous bodily harm is an offence under s 33 of the Crimes Act for which the maximum penalty is imprisonment for twenty-five years. 5 The following brief statement of the facts of the offence is derived from his Honour's statement of the facts of the offence in his remarks on sentence, which was not the subject of any criticism on this application.

6 At about 2.30 a.m. on Sunday 29 April 2001 the victim of the offence was in the nightclub section of the Argyle Street Hotel in Argyle Street, Parramatta. The applicant, who the victim knew, came up to the victim on the victim's right hand side and spoke threateningly to the victim. Two young women who were present, who knew both the victim and the applicant, observed the applicant speaking to the victim. The jury's verdict of guilty shows that the jury found beyond reasonable doubt that the applicant struck the right side of the victim's face with a glass he was holding in his own right hand. 7 Immediately after striking the victim with the glass, the applicant went to the nightclub's toilet. Two security officers employed by the Hotel went to the toilet and observed that the applicant had blood on his right hand. The applicant was escorted by security officers from the toilet, down the stairs and to the front of the Hotel. A police officer who had come to the Hotel saw the applicant leaving the Hotel and noticed an injury to his right hand. 8 As a result of being struck with the glass the victim suffered severe facial injuries, including the loss of his right eye, and he has permanent scarring on his right cheek. 9 The applicant was arrested on 9 May 2001 and released on bail on 11 May 2001.

10 At the trial the applicant denied that he had hit anyone with a glass or any other object. Neither the victim nor either of the young women who were present nor any other person who gave evidence at the trial had actually seen the applicant strike the victim with the glass. The Crown's case at the trial that it was the applicant who had struck the victim was a circumstantial one, which Judge Nield described in his remarks on sentence as being a strong circumstantial case.

11 In his remarks on sentence Judge Nield described the offence as being objectively very serious and as being "vicious, unprovoked, unjustified and cowardly". 12 In his remarks on sentence Judge Nield listed a number of matters which he said he had taken into account in sentencing the applicant. Among the subjective factors listed by his Honour were the applicant's age, background, upbringing, education, employment, marital status, health, the extent of the applicant's use of drugs and alcohol, the applicant's character, features of the applicant's criminal history which aggravated the offence and the applicant's prospects of rehabilitation. 13 His Honour noted that the applicant was born on 31 May 1971 and was accordingly almost thirty years old when he committed the offence. His Honour found nothing of any relevance to the sentencing of the applicant in the applicant's background and upbringing. The applicant had obtained the School Certificate and had begun, but not completed, an apprenticeship. The applicant had had various unskilled or semi-skilled jobs in the building industry but had been unemployed for about six months before he committed the offence. The applicant was single and had no dependents. The applicant had no physical disabilities. However, his Honour noted in his remarks on sentence that "for the past five years he has suffered from depression for which he has been prescribed medication. I see nothing to suggest that his state of mental health played any part in his attack upon the complainant." 14 Although the applicant had obviously consumed some alcohol on the night of 28/29 April 2001, his Honour found that the applicant was not under the influence of alcohol at the time he committed the offence. As for the applicant's criminal history, his Honour said in his remarks on sentence:

"The offender does not have an unblemished character. He has a criminal record, it is exhibit F. He has been dealt with for seventeen offences, of which fourteen were committed before and three committed after the subject offence. All offences were dealt with by a Magistrate in a Local Court. Of the seventeen offences one was for possessing a firearm when not authorised by licence or permit to do so; one for possessing a loaded firearm in a public place; one for discharging a firearm in a public place and one for possessing a knife in a public place. All of the offences pale in significance when compared with the subject offence. However, and notwithstanding his criminal record, the offender is well liked by those into whose contact he has come, as evidenced by testimonials (exhibits 1 to 5 inclusive). Also since being in prison he has behaved in a polite and cooperative manner to prison staff, as evidenced by exhibits 6 and 7." 15 As to features of the applicant's criminal history which aggravated the offence, his Honour noted the following:

In November 1999 a Magistrate had deferred passing sentence on the applicant for an offence of possessing a loaded firearm in a public place, conditionally upon the applicant entering into a bond to be of good behaviour for two years. The applicant had entered into the bond.

On 5 March 2001 the applicant had been charged with an offence of driving a motor vehicle when disqualified and had been released on conditional bail. 16 The commission of the present offence was a breach of the bond which the applicant had entered into and was a breach of a condition of his bail undertaking. His Honour said in his remarks on sentence "the fact that the offender committed the subject offence in breach of the bond and the bail undertaking is an aggravating feature of the offence." 17 His Honour accepted that the applicant was not beyond rehabilitation. 18 As regards special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act his Honour said: "As to whether or not special circumstances exist I have referred already to all the features and I do not see in any of them any special circumstance. Accordingly, the non-parole period will be six years and the parole period will be two years." 19 In written submissions in support of the application counsel for the applicant relied on four specific grounds of appeal. However, on the hearing of the application today counsel for the applicant informed the court that the first three of these specific grounds of appeal would not be pressed, and that the only grounds of appeal which would be pressed were: 1. That his Honour had erred in not allowing for the discrete period of pre-sentence custody of two days. 2. His Honour had erred in not finding special circumstances.

20 As I have already indicated, the applicant was arrested on 9 May 2001 and was not released on bail until two days later on 11 May 2001. It is unclear whether the fact that the applicant had spent this short period in pre-sentence custody was brought to his Honour's attention in the proceedings on sentence. Although the period is quite short, in my opinion an allowance should have been made for this period of pre-sentence custody. The allowance can be made by making the sentence to be imposed commence from a date two days earlier than the date selected by his Honour.

21 I turn to the second ground of appeal. It was submitted that his Honour had erred in not finding that there were special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act . In counsel for the applicant's written submissions, counsel had listed a long series of matters which, it was contended, should, either individually or in combination, have been found to have amounted to special circumstances. This list included the applicant's age, the unplanned nature of the offence, the applicant's mental condition, that this sentence of imprisonment would be the applicant's first significant prison sentence, the absence of offences of violence in the applicant's criminal history, the family support the applicant could expect from his parents and a sister and the applicant's conduct while in custody.

22 In oral submissions made on the hearing of this application counsel for the applicant referred particularly to the following matters. It was submitted that, although the applicant had a previous criminal history, there was an absence in that criminal history of offences of violence. Counsel referred to references from a number of referees, who, having knowledge of the offence committed by the applicant, said that the offence committed by the applicant was out of character for the applicant and the referees did not regard him as generally being a violent person.

23 Counsel for the applicant also referred to passages in a report by Ms Katherine Barrier, psychologist, which was before his Honour in the proceedings on sentence. At p 3 of her report Ms Barrier said: Mental Health "Marc gives a history particularly over the last five years of suffering periods of acute depression. He stated that during these periods he suffers disrupted sleep patterns, inability to relax, a much reduced concentration and attention span, reduced appetite and increased emotional lability. He also described a marked lack of intiative and motivation to a level where he was unable to cope with normal daily activities. The client also describes "up moods" during which he is full of energy, has lots of ideas although rarely enacts them, laughs a lot and is "always out socialising." He also reports intense anxiety attacks during which he experiences restlessness, shakiness and a feeling that his chest is going to explode. These anxiety attacks are not accompanied by agoraphobia. There is no history given of admissions to psychiatric centres. He reports he became increasingly concerned about his mental state and sought the advice of his long term general practitioner, Dr Lim of Pendle Hill who prescribed various medications for Marc whilst he was in the community. Marc remembers taking Lovan, an antidepressant and Valium. He said there were others but could not recall their names. Recently in custody he has been assessed by a Corrective Services psychiatrist and placed on Epilim. I contacted Dr Jeremy O'Dea, Corrective Services Health Psychiatrist, however at the time of sending this report, Dr O'Dea indicated that he had not been able to see Marc, nor access his file."

24 Counsel for the applicant also referred to a passage on page 6 of the report in which Ms Barrier said: "On the extensive personality test administered, Marc's profile indiates significant personality pathology as well as significant reactive levels of anxiety and depression. His very significant Borderline tendency score reflects marked mood swings, a wavering sense of identity and strong fears of rejection and abandonment. Over and above this he seems to be experiencing severe symptoms of anxiety and reactive depression currently. The personal history given indicates that it is also likely he has been experiencing clinical levels of anxiety and depression for at least the past five years. Marc sought treatment when in the community and was prescribed the antidepressant Lovan as well as Valium. In custody he has recently been placed on Epilim medication after a psychiatric consultation."

25 I do not consider that this second submission by counsel for the applicant should be upheld. 26 As I have already indicated, it is clear from his Honour's remarks on sentence that his Honour gave consideration to the question of whether he should find that there were special circumstances, and his Honour concluded, having reviewed numerous subjective features of the applicant, that he should not find that there were special circumstances. This application for leave to appeal can succeed, only if it can be demonstrated that his Honour erred in not finding that there were special circumstances. 27 Reference was made by counsel for the applicant to the applicant's criminal history and the absence from that criminal history of offences of violence. It is clear from his Honour's remarks on sentence that his Honour had taken into account the nature of the offences in the applicant's criminal history. Furthermore, although there were no offences of physical violence, there were offences in the applicant's criminal history of being in illegal possession of firearms and a knife. 28 It is noteworthy that the assessment of the applicant's mental condition made in Ms Barrier's report is not a final assessment but only a tentative or preliminary assessment, which would require further examination. There was no further evidence about the applicant's medical condition before the sentencing Judge. 29 It was put that this was the applicant's first significant term of imprisonment. However, the applicant had previously served terms of imprisonment, including one term of imprisonment which was just short of a year. 30 One of the circumstances relied on by counsel for the applicant as amounting to special circumstances was that the applicant, while in custody, had regularly had sessions with a psychologist. However, this circumstance indicates that within the Correctional system the applicant had been able to obtain at least some treatment for his condition. There was no evidence before the sentencing Judge that there was treatment of a kind which the applicant should receive, which the applicant would not be able to receive within the Correctional system. 31 In my opinion, counsel for the applicant has not succeeded in demonstrating that the sentencing Judge was in error in reaching his conclusion that he should not make a finding of special circumstances. 32 As I have decided that the first ground of appeal should be upheld, I would propose that leave to appeal be granted, that the appeal be allowed and that the sentence imposed by his Honour Judge Nield be quashed: the applicant should be sentenced to a term of imprisonment of eight years to commence on 12 June 2002 and expire on 11 June 2010, with a non-parole period of six years to commence on 12 June 2002 and expire on 11 June 2008. 33 I confirm the Judge's order that the applicant be subject to supervision whilst on parole. 34 SULLY J : I agree with the orders proposed.

35 HULME J : I also agree. 36 SULLY J : The orders of the court will be the orders proposed by Justice James. ********

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